8.2 Suits Against Public Officials in Their Individual Capacity

Besides authorizing official capacity suits against state and local officials for structural injunctive relief, 42 U.S.C. § 1983 authorizes claims against those officials in their individual capacity for compensatory and punitive damages. Although, as discussed above, the Eleventh Amendment limits official capacity claims against state officials to prospective injunctive relief, it does not affect damage claims against those officials in their individual capacity./1/ In this section, we discuss when absolute and qualified immunity limits individual capacity suits against public officials.

8.2.A. Absolute Immunity

By its terms, Section 1983 imposes liability without defense on state and local officials who, acting under color of law in their individual capacity, deprive plaintiffs of rights created by the Constitution and federal law. Nevertheless, the Supreme Court, drawing on common law, created absolute immunity from liability for some government officials and qualified immunity for others. Absolute and qualified immunity were developed to protect officials from lawsuits for actions relating to their official duties. The Court explained the underlying rationale for immunity:

[T]he public interest requires decisions and actions to enforce laws for the protection of the public . . . . Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity— absolute or qualified —for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all./2/

Absolute immunity bars any action against officials in the conduct of their office even for actions taken maliciously or in bad faith. Absolute immunity focuses on the governmental function being performed and the nature of the responsibilities of the official, not on the specific action taken./3/ In deciding whether officials performing a particular function are entitled to absolute immunity, courts generally look for a historical or common-law basis for the immunity in question./4/ With one exception, absolute immunity is restricted to those persons performing judicial or legislative functions.

8.2.A.1. Judicial Immunity

The Supreme Court held in Stump v. Sparkman that judges have absolute immunity from Section 1983 damage actions for their “judicial” acts./5/ The Court permitted liability only for acts taken “in the clear absence of all jurisdiction.”/6/ Drawing from the common-law immunity of judges, the Court held that judicial immunity protects judges even when their judicial acts:

For example, in Stump, a circuit court judge was held to be absolutely immune from suit for authorizing sterilization of a “somewhat retarded” 15-year-old girl. The girl’s mother brought the petition for sterilization because she had stayed out overnight with young men, and the mother wanted “to prevent unfortunate circumstances.”/10/ Judge Stump approved the petition the day it was filed, without notice to the child or appointment of a special guardian. The girl underwent the procedure six days later under a misinformed belief that she was having her appendix removed. She did not find out about the sterilization, or the court order, until after she married and was unable to become pregnant. The Court reasoned that, though unconstitutional, Judge Stump’s order was a judicial act. Though issued in excess of his jurisdiction, it was not issued in the clear absence of jurisdiction./11/

Because of its focus on judicial acts, judicial immunity attaches to the judicial function, not the judicial office. If a court, individual judge, or prosecutor performs executive or legislative functions, immunity will be determined by the immunity applicable to the legislative or executive function performed./12/ Thus, absolute judicial immunity did not, for example, protect a judge from a suit for damages challenging the dismissal of a female probation officer./13/ Rejecting the argument that a judge must have absolute immunity when hiring and firing staff, the Court ruled that judicial immunity attaches only to the judicial acts of judges. Because a judge who hires and fires is indistinguishable from an administrative or executive branch official who makes personnel decisions, those decisions are administrative rather than a judicial acts and, therefore, not protected by absolute immunity. The Court remanded for a determination of whether the judge was protected by qualified immunity. Similarly, a judge who harassed and arguably constructively discharged his secretary because she became engaged to a courthouse employee did not act in a judicial capacity and, therefore, was not entitled to absolute immunity./14/

Four factors determine whether an act is judicial: (1) whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge’s chambers; (3) whether the controversy centered around a case pending before the court, and (4) whether the acts arose directly out of a visit to the judge in his official capacity./15/ Employing those considerations, the Court held that a judge who ordered police officers “forcibly and with excessive force” to bring to his courtroom an attorney who was absent from a morning calendar performed a judicial act./16/ The Court reasoned that an order to court officers to bring a person within the courthouse before the judge is a function normally performed by a judge; because the order was directed at an attorney in a pending case, it was issued by a judge acting in his judicial capacity./17/ Similarly, a state judge who held in contempt and jailed a party and thereby immediately defied a binding rule of judicial procedure requiring a five-day stay of the sentence, was entitled to absolute judicial immunity. The act of holding a party in contempt in a proceeding in which a judge has subject-matter jurisdiction is a judicial act, and the failure to issue the required stay was a judicial error by a judge performing a judicial function rather than an act taken in the complete absence of jurisdiction./18/ But a judge who sexually assaulted women who had come to his chambers to see him in his official capacity in pending matters was not entitled to judicial immunity./19/ Regardless of where it is committed, a sexual assault is not a judicial act. Similarly, a night court judge who ordered his bailiff to detain, handcuff, and bring into a court a coffee vendor who sold putrid coffee was not entitled to judicial immunity./20/

All circuits interpret Stump and Bradley to require a clear absence of subject matter jurisdiction in order to lose immunity; a judge who has subject matter jurisdiction but acts without personal jurisdiction still enjoys absolute immunity for judicial acts./21/ So does a judge who issues a contempt order after having been disqualified by the filing of a disqualification affidavit./22/ The Stump standard is, therefore, difficult, but not impossible to meet. In one case, for example, a judge whose subject matter jurisdiction to issue arrest warrants was limited to crimes committed within his judicial district lost judicial immunity when he signed an arrest warrant based on a complaint of criminal conduct which he knew occurred outside his territorial jurisdiction./23/ Not only did he exceed his jurisdiction, but also he acted in the complete absence of subject matter jurisdiction./24/

The courts of appeal have unanimously held that judges who sit on courts of limited rather than general jurisdiction also enjoy absolute judicial immunity for judicial acts not taken in the clear absence of jurisdiction./25/ Administrative adjudication can give rise to absolute judicial immunity, sometimes termed quasi-judicial immunity, when the administrative adjudicator performs a judicial function in proceedings sufficiently judicial in character. In contrast, a judge’s administrative decisions are sometimes not regarded as judicial acts./26/ In determining whether an individual performing administrative adjudicatory functions is entitled to absolute or only to qualified immunity, the Supreme Court identified several relevant factors:

(a) The need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal./27/

Accordingly, school board members who sit as adjudicators in student disciplinary proceedings, prison employees who decide prison disciplinary proceedings, and court reporters, the Court has held, do not enjoy absolute judicial immunity and may invoke only qualified immunity./28/ Nor do school board members sitting as adjudicators in proceedings relating to individual faculty employment decisions,/29/ or court or juror officers dismissing grand jurors from service./30/ The courts of appeal, however, have since extended absolute immunity to parole board members,/31/ growth management board members adjudicating land-use controversies,/32/ mayors who conduct liquor license suspension hearings as liquor control commissioners,/33/ and to state personnel board members performing adjudicative functions,/34/ and to members of a state board of medical examiners exercising their authority to discipline medical professionals./35/

Because judicial immunity arises from the performance of an adjudicatory function, it extends to judicial or adjudicative acts within a quasi-judicial administrative proceeding whether or not the actor is a judge or an administrator./36/ One oft-cited standard for determining whether to apply judicial immunity to protect members of licensing boards is a useful test to distinguish an administrative adjudicatory act entitled to judicial immunity from an ordinary administrative act entitled only to qualified immunity:

First, does a Board member, like a judge, perform a traditional “adjudicatory” function, in that he decides facts, applies law, and otherwise resolves disputes on the merits (free from direct political influence)? Second, does a Board member, like a judge, decide cases sufficiently controversial that, in the absence of absolute immunity, he would be subject to numerous damages actions? Third, does a Board member, like a judge, adjudicate disputes against a backdrop of multiple safeguards designed to protect a physician’s constitutional rights?/37/

Although cases creating judicial immunity bar a Section 1983 claim for damages, they do not bar a Section 1983 action for prospective injunctive relief or an award of attorney fees under Section 1988./38/ Congress, however, amended Section 1983 to forbid injunctive relief absent a violation of a declaratory decree or the unavailability of declaratory relief and, thus, effectively, if not formally, extended absolute judicial immunity to claims for injunctive relief./39/

8.2.A.2. Prosecutorial Immunity

Prosecutors enjoy absolute immunity from damage liability for the initiation and prosecution of a criminal case./40/ The Supreme Court, relying heavily on considerations of policy, reasoned that initiating a prosecution and presenting a case are activities that are “intimately associated with the judicial phase of criminal process, and thus were functions to which the reasons for absolute immunity apply with full force.”/41/

Like judicial immunity, prosecutorial immunity is functional; it attaches only to acts intimately related to the initiation and prosecution of a criminal case. Struggling to define the boundaries of prosecutorial immunity, the Court held that a prosecutor who advised police officers on Fourth Amendment considerations in an ongoing criminal investigation performed an investigatory rather than a prosecutorial function and was, therefore, not entitled to absolute immunity. That same prosecutor, however, was entitled to absolute immunity for eliciting misleading testimony from those officers at a hearing on an application for a search warrant./42/ Although a prosecutor who suborns perjury at a criminal trial is absolutely immune, a prosecutor who manufactures false evidence does not enjoy absolute immunity. The former performs a prosecutorial function by presenting evidence, while the latter performs a police investigatory function by gathering evidence./43/ In a significant Ninth Circuit decision, the court distinguished between purposes for obtaining a material witness warrant: “when a prosecutor seeks a material witness warrant in order to investigate or peremptorily detain a suspect, rather than to secure his testimony at another’s trial, the prosecutor is entitled at most to qualified, rather than absolute immunity.”/44/ Because conducting a press conference is not intimately associated with the judicial process, a prosecutor is not absolutely immune for statements made during a press conference./45/ The prosecutor who prepares and files an information and application for an arrest warrant enjoys absolute immunity for those actions ./46/ But if the prosecutor swears under oath to false statements of fact in the information, he becomes a complaining witness rather than a prosecutor and, like a complaining witness at common law, is not entitled to absolute immunity./47/

The Court’s decisions do not draw the line between performance of the investigatory function and the prosecutorial function with absolute clarity. Imbler v. Pachtman suggested that the inquiry begins with determining whether the prosecutor is performing a quasi-judicial function. A prosecutor obviously performs that function by trying a criminal case; hence, absolute immunity extended to the presentation of perjured testimony and the withholding of exculpatory evidence./48/ Imbler and Kalina v. Fletcher extended absolute immunity to the initiation of a prosecution, and Imbler noted that “[p]reparation, both for the initiation of the criminal process and for a trial, may require the obtaining ... of evidence.”/49/ Relying on that language, several courts of appeals have further extended absolute immunity to the prosecutor’s investigation and collection of evidence once probable cause is established./50/ Other courts have held that, before probable cause is established, an investigating prosecutor performs the role of police officer and is, therefore, not entitled to absolute immunity./51/ Post conviction work performed by prosecutors is generally subject to absolute immunity, particularly when the prosecutor continues her work as an advocate./52/

The Supreme Court’s recent decision in Van de Kamp v. Goldstein explained the boundary between prosecutorial and administrative functions and, in a sense, blurred them. In Goldstein, the plaintiff alleged that the district attorney and his chief assistant failed to adequately train line prosecutors on their duties to provide impeachment related information about prosecution witnesses to defense attorneys./53/ Although the claim was framed as a challenge to administrative procedure, the Court viewed it as dealing with the disclosure of information prior to trial which is "directly connected with the prosecutor's basic trial advocacy duties." /54/ The Court was unwilling to distinguish between cases of prosecutorial error at trial (to which absolute immunity attaches) and claims that such error was caused by inadequate training or insufficient information management systems, worried that claims of the former type could be easily recast as claims of the latter and usher in waves of litigation./55/

Because public defenders do not act under color of law in representing individual clients, they may not be sued under Section 1983; hence, the issue of absolute immunity never arises./56/ When a public defender acts in an administrative capacity rather than as representative of a client, she acts under color of law but is not performing a quasi-judicial function and is, therefore, entitled only to qualified immunity./57/

8.2.A.3. Witness Immunity

With the exception of complaining witnesses who sign affidavits seeking the issuance of search or arrest warrants, witnesses in judicial proceedings are absolutely immune from suit arising from their testimony./58/ This absolute immunity extends to suits arising from the witness's grand jury testimony./59/ Though often phrased as witness immunity, the immunity can best be understood as an incident of judicial immunity. Just as judicial immunity extends to prosecutors presenting a criminal case, so does it extend to witnesses testifying in judicial proceedings. Complaining witnesses who swear affidavits in support of arrest and search warrants are said not to be participants in judicial proceedings and, therefore, enjoy only qualified immunity./60/ Similarly, witnesses in quasi judicial proceedings enjoy absolute immunity if the official conducting the proceeding enjoys absolute quasi judicial immunity./61/

8.2.A.4. Legislative Immunity

Members of Congress acting as legislators are absolutely immune from suits for either prospective relief or damages under the speech and debate clause of the U.S. Constitution./62/ Speech-and-debate-clause immunity ensures that the legislative function may be performed independently without fear of outside interference./63/ Because of its constitutional status, speech-and-debate clause immunity is broader in scope than common-law legislative immunity./64/

State,/65/ regional,/66/ and local/67/ officials performing legislative functions enjoy absolute immunity under Section 1983 for their legislative acts. The immunity attaches to any legislator acting in the sphere of any legitimate legislative activity, including the conduct or participation of investigations by standing or special committees./68/ Whether an act is legislative turns on the nature of the act, not the motive of the actor. Introducing and voting for a general budget which abolishes a specific position within local government, for example, is a legislative act sheltered by absolute immunity whatever the motives of the legislators may be./69/

Although it extended legislative immunity to local officials, Bogan v. Scott-Harris left open the question of whether introducing and voting for an ordinance was always a legislative act. The Supreme Court held that the budget ordinance at issue there “bore all the hallmarks of traditional legislation,” “reflected a discretionary, policymaking decision implicating the budgetary priorities of the city and the services it provides to its constituents,” and “may have prospective implications that reach well beyond the particular occupant of the office.”/70/

Refusing to exalt form over substance, however, the courts of appeal have denied legislative immunity to local legislators:

who voted to lay off selected employees because of their political affiliation,/71/

However, courts granted legislative immunity to local legislators who voted to eliminate a certain governmental position/74/ and to legislators who voted to strip certain employee classifications of civil service protection./75/ Local legislators who voted to deny a conditional land-use permit analogously were not entitled to legislative immunity because of the ad hoc character of the process and the individual focus of the matter determined./76/ Legislators voting to award bids or purchase property similarly performed administrative rather than legislative functions and were not sheltered by absolute immunity./77/ Thus, when a school board acts to expel students, or a city council fires a police chief, the school board members and city council members do not enjoy legislative immunity./78/ Although these officials may have some legislative responsibility, their decisions to expel or fire determine the rights of specific individuals and are, therefore, not legislative acts; rather, they are executive or administrative acts beyond the scope of either legislative or judicial immunity.

The still evolving scope of legislative immunity may generate substantial litigation as local governments learn to be more sophisticated in using their powers to punish unpopular speech and unpopular groups. But, for the most part, legislative immunity should not pose a major practice problem. Litigation seeking to enjoin the enforcement of an unconstitutional statute should proceed against the officials charged with enforcement rather than the legislators who enacted it.

8.2.B. Qualified Immunity: Executive Officials

The U.S. president enjoys absolute immunity from suits for damages arising from his conduct as president./79/ But every other executive official, from cabinet officials and governors, legislators, and judges performing administrative functions, to the tens of thousands of public employees exercising state and local authority such as law enforcement officers and schoolteachers, enjoy only qualified immunity from suit./80/ A private individual temporarily retained by the government to carry out its work is also entitled to seek qualified immunity from suit under § 1983./81/

Drawn from analogous common-law defenses available to public officials, qualified immunity protects public officials from personal liability unless their conduct violates then clearly established constitutional law. The defense rests upon two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good./82/

Qualified immunity is an affirmative defense. Early cases required a public employee to establish both that he did not violate clearly established law and that he acted without malicious intent./83/ Because proof of subjective good faith was incompatible with summary judgment, the Supreme Court modified the defense to shield public employees performing discretionary government functions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”/84/ Apart from special needs and administrative search cases, the Court has cautioned against examination of subjective intent./85/ Because public employees/86/ almost always perform discretionary functions,/87/ qualified immunity really turns on two issues: (1) whether the action in question violated a constitutional right and (2) whether that action violated clearly established law./88/ Although the former question may involve disputed facts, the latter is a question of law subject to early resolution. This involves a historical inquiry into whether the law was clearly established when the defendant acted.

Saucier v. Katz held that lower courts must decide qualified immunity defenses using that two step analysis in that sequence./89/In Pearson v. Callahan the Court in 2009 relaxed the analysis, holding that the Saucier procedure was not mandatory and that courts should have the flexibility to decide the question in either order./90/ The Court observed that it is sometimes easier to determine whether a constitutional right was clearly established than whether there is such a right./91/

8.2.B.1. Clearly Established Law

Whether qualified immunity applies critically depends on the level of generality at which a court assesses whether the law is clearly established. In a series of cases, the Supreme Court sketched out the approach to be taken. Anderson v. Creighton refined the meaning of “clearly established law” in a law enforcement officer’s qualified immunity defense against a claim that he conducted a warrantless search without probable cause or exigent circumstances./92/ The plaintiff argued that no officer could reasonably believe that he could conduct an unreasonable search as the Fourth Amendment itself clearly established the prohibition against unreasonable searches. The Court, rejecting the argument, held that it stated the legal inquiry too generally; because probable cause determinations are fact dependent, the relevant question was “the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed.”/93/ Although identifying a case in which “the very action in question has previously been held unlawful” is not necessary, it is essential that “in the light of pre-existing law, the unlawfulness must be apparent.”/94/ Thus, to be "clearly established a right must be sufficiently clear 'that every reasonable official would [have understood] that what he is doing violates that right.'"/95/

Because both the Fourth Amendment and qualified immunity incorporate an inquiry into reasonableness, the Anderson plaintiff argued that one could not both violate the Fourth Amendment by acting unreasonably and enjoy qualified immunity for having acted reasonably. The Court rejected that argument, holding that the two inquiries into reasonableness incorporated a different focus. The Fourth Amendment inquiry asks whether the officer reasonably, even if mistakenly, appraised the facts in assessing the appropriate level of force. Such facts would include the “severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”/96/ In contrast, the qualified immunity inquiry asks whether, based on the then current state of the law, the officer reasonably might have misappraised the law’s application even when all facts are perceived correctly./97/ The Court subsequently applied the same rule to a Fourth Amendment excessive force claim in Brosseau v. Haugen. In that case, the Court held that qualified immunity protected an officer, absent fair warning from past cases that it would violate the Fourth Amendment “to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.”/98/

In the wake of Anderson, the Eleventh Circuit has repeatedly held that a plaintiff could defeat qualified immunity only by identifying a previous case deciding the same issue on materially similar facts—a standard that virtually converted qualified immunity into absolute immunity. Thus, when prison guards punished a member of a chain gang for misconduct by handcuffing him to a hitching post shirtless with his arms above his shoulders for seven hours in the hot sun without food or a bathroom break, the Eleventh Circuit held that his Eighth Amendment claim was barred by qualified immunity because there was no previous case decided on materially similar facts./99/ The Supreme Court subsequently rejected this view and reversed the Eleventh Circuit./100/

The Court said that “[t]his rigid gloss on the qualified immunity standard, though supported by Circuit precedent, is not consistent with our cases.”/101/ Rather, the Court held that qualified immunity served to protect defendants from liability absent “fair notice” that their conduct was unlawful. The Court noted that it previously held that in prosecutions under 18 U.S.C. § 242, the criminal counterpart to Section 1983, due process required only that the accused be given fair warning that his conduct was unlawful./102/ Furthermore, the Court had on several occasions “upheld convictions under § 241 or § 242 despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.” /103/ Seeing no reason to require a greater warning in civil litigation, the Court held:

Although earlier cases involving “fundamentally similar” facts can provide especially strong support for a conclusion that the law is clearly established they are not necessary to such a finding. The same is true of cases with “materially similar” facts. Accordingly, pursuant to Lanier, the salient question that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of Hope was unconstitutional./104/

Hope v. Pelzer answered that question and concluded that Supreme Court and circuit cases were sufficient to give the required fair warning that the use of a hitching post as punishment violated the Eighth Amendment. Hope reiterated that "general statements of the law are not inherently incapable of giving fair and clear warning" and noted that "a constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even thought the very action in question has [not] previously been held unlawful."/105/

Reasoning similarly, the Court subsequently held in Groh v. Ramirez that a search warrant that failed to describe either the person or things to be seized was facially invalid under the Fourth Amendment, foreclosing the officer who prepared and executed the warrant from asserting qualified immunity even though the warrant application described the things to be seized and the search was confined to the scope of the warrant application./106/ The Court, however, recently distinguished Groh in Messerschmidt v. Millender/107/. There, an officer investigating a domestic assault by an apparent gang member with a particular weapon, sought and received a search warrant from a magistrate permitting a search in a house of all weapons and gang paraphernalia. The warrant application was reviewed and approved by the officer's supervisor and an assistant district attorney. The Court observed that issuance of a warrant by a neutral magistrate is a clear indication of the officer's "objective good faith."/108/ Yet, the Court has also recognized an exception when "it is obvious that no reasonably competent officer would have concluded that a warrant should issue."/109/ Although the warrant in Messerschmidt was defective, given the particular facts presented, the Court found that the officer was not "plainly incompetent" for relying upon it, particularly given the approvals of superiors./110/

Although public officials routinely assert qualified immunity, Hope’s “fair warning” standard has made the defense somewhat easier to overcome; the courts of appeal no longer insist that plaintiffs conduct “a scavenger hunt for prior cases with precisely the same facts”/111/ to avoid defeat. Because broad statements of principle can clearly establish law, the courts of appeals frequently have denied qualified immunity even without a case decided on materially similar facts./112/

8.2.B.2. The Reasonable Official and Scope of Discretion

The question of whether a reasonable official should have believed that the conduct in question violated clearly established law is largely a function of whether the law in question was clearly established. In that sense, the determination of whether the official’s belief that his conduct was reasonable is redundant; it is reasonable whenever the law is not clearly established./113/ The existence of reasonable grounds for the belief formed at the time of the action and in light of all the circumstances then present is what affords a basis for qualified immunity.

Early qualified immunity cases also suggested that the scope of qualified immunity varied with the scope of discretion and responsibility of the defendant’s position; the language first appeared in Scheuer v. Rhodes and was last mentioned in Nixon v. Fitzgerald. The courts of appeal have not relied on it since 1982./114/ With the rise of objective reasonableness as the standard for qualified immunity, the inquiry into the scope of discretion would seem relevant only to whether the official may raise the defense; an official who acts outside the scope of his discretionary authority and who violates the Constitution cannot assert qualified immunity even if his conduct did not violate then clearly established law./115/

Given the Court’s expansive interpretation of qualified immunity, you should allege the facts that defeat qualified immunity in detail when suing a public official for damages. Advocates should refrain from suing officials for damages in the absence of evidentiary support that will allow a claim to overcome qualified immunity.

Conventional claims of unlawful discrimination and retaliation rest upon conduct whose legality depends upon the motive for rather than the character of the conduct. The Constitution does not prohibit firing public employees, but it does prohibit firing them because of their race or in retaliation for protected speech. To avoid summary judgment on the merits of the underlying constitutional claim, the plaintiff must produce sufficient evidence, usually circumstantial, from which a reasonable jury can infer that the defendant intentionally discriminated or retaliated; without that evidence, the plaintiff cannot establish unconstitutional conduct./116/ With no evidence of unconstitutional conduct, the defendant will prevail without reaching the question of qualified immunity. But if the plaintiff has sufficient evidence of unconstitutional motive to avoid summary judgment, qualified immunity generally will not benefit a defendant because the constitutional prohibition against intentional discrimination or retaliation has long been clearly established law./117/

The question of how to adapt qualified immunity to state-of-mind claims reached the Supreme Court when a prisoner alleged that a prison official intentionally misdelivered legal papers in retaliation for the filing of a lawsuit./118/ The Court noted a potentially serious problem:

Because an official’s state of mind is “easy to allege and hard to disprove,” insubstantial claims that turn on improper intent may be less amenable to summary disposition ... [and] therefore implicate obvious concerns with the social costs of subjecting public officials to discovery and trial, as well as liability for damages. /119/

Despite its concern, the Court rejected the imposition of a heightened clear and convincing evidentiary burden in claims against public officials. To preserve a place for qualified immunity in state of mind litigation, the Court suggested that trial courts address the defense within the existing framework of the rules of civil procedure by requiring, when appropriate, that plaintiffs plead further in response to the defense and by imposing careful controls on discovery./120/

That framework was changed significantly in Ashcroft v. Iqbal./121/ While insisting that it was not imposing a heightened pleading standard, the Court's requirement that the complaint "plausibly" suggest intentional discrimination effectively does so. Plausibility pleading makes state of mind cases substantially more difficult to proceed past the motion to dismiss stage.

8.2.B.4. Qualified Immunity Practice and Procedure

Qualified immunity protects public officials from the burden of litigation as well as from judgments./122/ Therefore, the issue should be resolved early and, when possible, before discovery./123/ Because defendants are virtually certain to raise qualified immunity, either through a motion to dismiss or answer or motion for summary judgment, you must anticipate it in drafting the complaint with the plausibility pleading requirements of Iqbal in mind.

Should the court deny the motion to dismiss or for summary judgment, the defendant is entitled to an immediate interlocutory appeal/124/ and, should he take one, there is a stay of further proceedings in the district court pending adjudication of the appeal./125/ The defense of qualified immunity immediately tests whether the plaintiff alleged sufficient facts to establish that a reasonable officer would have believed the conduct in question to have been unlawful under clearly established law. If resolution of the defense turns on pure issues of law, an interlocutory appeal is permitted. It is not available if the trial court determines that application of the defense raises questions of disputed fact./126/ A defendant who unsuccessfully appeals from an order denying a motion to dismiss on qualified immunity may appeal a second time from an order denying summary judgment on qualified immunity, again staying proceedings below./127/ Thus, claims for damages against a defendant who can raise the defense of qualified immunity can take years to come to trial even when the defense is unsuccessful. Accordingly, you must discuss with your clients the advantages and disadvantages of suing public officials for damages so that they can make an informed decision on whether the claim is worth pursuing in the face of almost certain delay.

If the plaintiff alleges specific facts showing a violation of clearly established law, but the defendant accompanies a summary judgment motion with affidavits contesting plaintiff’s factual allegations and supporting qualified immunity, then discovery is proper./128/ A plaintiff who is served with such a motion for summary judgment should consider making a Rule 56(d) motion for discovery in addition to or instead of responding to the motion for summary judgment. Should the court again deny summary judgment following discovery, the defendant may take a second interlocutory appeal./129/ If the defendant does not seek summary judgment, or if the district court denies the motion(s), the plaintiff may finally undertake full discovery.

11. Absolute judicial immunity is justified in part because “the judicial process is largely self-correcting: procedural rules, appeals, and the possibility of collateral challenges obviate the need for damages actions to prevent unjust results.” Mitchell v. Forsyth, 472 U.S. 511, 522 (1985). Absolute immunity was upheld in Stump, although these protections were unavailable to the sterilized plaintiff.

15.See generally Mireles v. Waco, 502 U.S. 9, 12 (1991). See also Dawson v. Newman, 419 F.3d 656, 661 (7th Cir. 2005) (“three factors generally govern the determination of whether a particular act or omission is entitled to judicial immunity: ‘(1) whether the act or decision involves the exercise of discretion or judgment, or is rather a ministerial act which might as well have been committed to a private person as to a judge; (2) whether the act is normally performed by a judge; and (3) the expectations of the parties, i.e., whether the parties dealt with the judge as judge.’”) (quoting Lowe v. Letsinger, 772 F.2d 308, 312 (7th Cir. 1985)).

20.Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978), cert. denied, 439 U.S. 1072 (1979). The judge did not argue the claim of judicial immunity on appeal and contested only the award of punitive damages. Even if issuing an arrest order for selling bad coffee was a judicial act, the judge clearly lacked subject-matter jurisdiction for his actions.

29.Harris v. Victoria Independent School District, 168 F.3d 216, 224-25 (5th Cir. 1999); Stewart v. Baldwin County Board of Education, 908 F.2d 1499, 1507-8 (11th Cir. 1990). Harris notes six factors relevant to ascertaining whether quasi judicial immunity attaches to a particular administrative proceeding: “(1) the need to assure that the individual can perform his functions without harassment or intimidation; (2) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (3) insulation from political influence; (4) the importance of precedent; (5) the adversarial nature of the process; and (6) the correctability of error on appeal.” 168 F.3d at 224.

42.Burns v. Reed, 500 U.S. 478 (1991). Burns expressly declined to decide whether a prosecutor would be absolutely immune for maliciously seeking a warrant without probable cause; the Court limited its holding to conduct as an advocate during the probable-cause hearing.

47.Kalina v. Fletcher, 522 U.S. 118 (1997). Justice Scalia concurred but argued that the Court’s prosecutorial immunity decisions could not be grounded in the common law of 1871 and that the result, though correct, rested upon a meaningless distinction between preparing an information and swearing to its truthfulness, Id. (Scalia, J. concurring).

51. Mitchell v. Forsyth, 472 U.S. 511, 524 (1985) (attorney general not entitled to absolute immunity for ordering wiretaps as part of national security investigation since he was not acting in prosecutorial capacity); Powers v. Coe, 728 F.2d 97, 103 (2d Cir. 1984) (prosecutor not entitled to absolute immunity “when a prosecutor engages in or authorizes and directs illegal wiretaps” and “the wiretapping is ... investigative in nature...”).

64. Speech and Debate Clause immunity extends to criminal prosecutions. Its scope includes all activity related to the deliberations of Congress. Gravel v. United States, 408 U.S. 606 (1972). In Gravel Sen. Mike Gravel held a meeting of the Subcommittee on Buildings and Grounds of the Senate Public Works Committee, read extensive portions of the Pentagon Papers regarding the United States’ involvement in the Vietnam War, and placed all forty-seven volumes in the public record. Senator Gravel also arranged for their private publication. The Supreme Court held that the senator was absolutely immune from any suit regarding the conduct of the hearing but was not immune for his actions in arranging a private publication.

82.Scheuer, 416 U.S. at 240. The Supreme Court recently observed that "[q]ualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 129 S. Ct. 808, 815 (2009).

85. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080-81 (2011) (holding that former Attorney General Ashcroft was entitled to qualified immunity in a claim that post-9/11 use of the material witness statute was a pretext for the government to arrest and hold individuals suspected of terrorist links, but without evidence to justify arrests on substantive charges).

86. The term "public employees" here includes individuals working temporarily for a government. In Filarsky v. Delia, 132 S. Ct. 1657 (2012) the Court held that a private attorney retained by a city to investigate the activities of a city employee could assert qualified immunity.

87. For a rare example of a public official held not to be performing a discretionary function, see Holloman v. Harland, 370 F.3d 1252, 1282-84 (11th Cir. 2004) (public school teacher not performing discretionary function when leading class in moment of silent prayer, and therefore not entitled to raise qualified immunity as defense to suit). The court in Holloman observed: “Employment by a local, county, state, or federal government is not a carte blanche invitation to push the envelope and tackle matters far beyond one's job description or achieve one's official goals through unauthorized means. Pursuing a job-related goal through means that fall outside the range of discretion that comes with an employee's job is not protected by qualified immunity.” Id. at 1267.

95. Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083) (whether there is a right to be free from retaliatory arrest, otherwise supported by probable cause, after making statements to a public figure was unclear).

96. Saucier v. Katz, 533 U.S. 194, 205-06 (2001) (internal citations omitted), overruled on other grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009). The Court examined reasonableness in a different context in Scott v. Harris, 550 U.S. 372 (2007). In Scott, the Court held that it was reasonable for an officer to ram a fleeing driver's car to potentially prevent injuries to innocent bystanders.

97.Id.

98.Brosseau v. Haugen, 543 U.S. 194, 600 (2004) (per curiam). Brosseau expressed no view on whether the shooting violated the Fourth Amendment, 543 U.S. at 598; the Court summarily reversed to correct what it saw as a “clear misapprehension” of the standard for qualified immunity. Since there were no past cases holding that the Fourth Amendment prohibited the use of deadly force to apprehend a felon who concededly drove his escape vehicle with “a wanton or willful disregard for the lives . . . of others,” Brousseau added little to existing qualified immunity doctrine.

105. Id. Safford Unified School District No. 1 v. Redding, 129 S. Ct. 2633, 2643 (2009). Conversely, an officer need not point to a case in his circuit justifying the action taken. Acceptance by other courts of the reasonableness of a search and seizure is sufficient to show that unlawfulness of a search and seizure was not clearly established. Pearson v. Callahan, 129 S. Ct. 808, 822-23 (2009).

113. See, e.g., Malley v. Briggs, 475 U.S. 335, 344-45 (1986) (applying standard of objective reasonableness in fourth amendment claim against officers who procured search warrant, holding that “[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable ... will the shield of immunity be lost.”).

119. Id. at 584-85. Harlow v. Fitzgerald, 457 U.S. 800 (1982), previously held the defense to be available to claims of unlawful retaliation, but its specific holding was only that immunity sheltered an employee unless he violated clearly established law irrespective of his state of mind: “Thus, although evidence of improper motive is irrelevant on the issue of qualified immunity, it may be an essential component of the plaintiff’s affirmative case.” Crawford-El, 523 U.S. at 589.

129. Pelletier, 516 U.S. at 306-07. The defendant may not appeal if the sole reason for denying summary judgment is his failure to show the absence of a genuine issue of material fact respecting whether certain conduct occurred rather than whether the conduct violated clearly established law. Johnson v. Jones, 515 U.S. 304, 316 (1995).